Kopel concedes that Burress was an idiot to carry a gun in a sweatpants waistband (from which it slipped, so he grabbed it, pulling the trigger and shooting himself in the leg). But he moves on to his big point, using the Supreme Court's new Second Amendment decision -- District of Columbia v. Heller -- against NYC's "draconian" gun laws.

The Heller decision did not say that requiring a license to carry a gun was unconstitutional. But in New York State, nonresidents cannot even apply for the licenses to possess or carry a handgun. Unlike most other states, New York refuses to honor carry permits issued by sister states. Most observers believe that the Supreme Court will eventually make state and local governments obey the Second Amendment. If it does, New York's discrimination against nonresidents will probably be ruled unconstitutional.

80 comments:

I hate when people talk about draconian laws and then don't cite them. Makes it a pain in my lazy ass having to look them up. In any case, there are so many things Plaxico did wrong that I doubt he'd make a good constitutional hero. The fact that he accidently discharged his unregistered firearm in a crowded nightclub is not going to over well with a lot of pro gun people.

The gun willsuddenly belong to a friend, the charge will be reduced t something that can be handled with community service and a fine, and life will continue. Burress has to much at stake to gamble on some sort of principled stand, that should he lose has him in jail during his prime earning years. NYC has too much at stake to gamble and allow their ridiculously unconstitutional law to be challenged right now. The sheeple of New York have been conditioned over the decades, and the practical exercise of the RKBA is alien to most law abiding New Yorkers, even the Republicans on Staten Island and in Nassau Co.

Having now read the statute (any NY crim lawyers around here?) I wonder how many cases like this plead out as misdemeanors? If they take it to a jury I'm pretty sure Plaxico can beat the class C felony (although who wants to roll them dice). If he did end up getting convicted and doing the mandatory 3.5, he would probably be more a poster boy against mandatory minimums than gun laws.

On a different point, I do wonder why some of these guys feel it necessary to be packing in nightclubs anyway? I mean what kind of places are they going to that warrants carrying a weapon? Now in Indy, we have had our share of Pacer’s players run afoul of the law by hanging out at the strip clubs and violence has ensued. I’ll carry my gun at times, depending on where I’m going although I carry it much less here in Indy than I did back in the day when I worked in the steel mill and my commute took me through Gary.

Honestly, if these guys feel that threatened when going to the clubs, maybe they need to re-evaluate the kind of places they go to or consider getting a bodyguard. If they do feel compelled to carry a gun when they go clubbing, then taking gun safety lessons and purchasing a shoulder holster that can be discreetly covered by a nice jacket is a good start.

There are thousands of gun owners who use their weapons to defend life and property all the time and not always with fatal results. These are the individuals who should be championed as the necessity for the 2nd Amendment.

Chris: "unregistered firearm "? Whats that? You do know that in about 99% of the country there is no such thing as a registered firearm? Including where Burress is from. Also, not to pick too many nits, but this is not an accidental discharge. There is no indication that the firearm malfunctioned. This was a negligent discharge, because the weapon fired when he pulled the trigger just as it was supposed to. Burress was negligent in how he handled it, and fired the weapn. It didn't just 'go off'. It took human agency to fire the weapon.

Now, Burress is a class A idiot, showing off his weapon to a crowd and shooting himself. If his Florida carry permit hadn't expired, then this could be a case to get rid of NY's restrictions based on Full Faith and Credit. However, with the current information, I don't think this case is going to go anywhere toward dropping NY's arguably unconstitutional restrictions on firearms ownership and carry.

Like I said in the other thread: I don't think Burress's case is a good one to use to argue gun rights. It's too easy for other people to say some of the things that have been said here and in other forums - "Let him get a bodyguard", "He shouldn't be in a bar where he fears for his safety", etc. A better one - such as a person who lives in a rough area, has been threatened before, and is refused a permit - hasn't come along yet, but Plax's case just has too many escape routes for people to use against it.

On top of that, as I've said before, he's a bonehead. A non-malicious, non-thuggish bonehead, but the point is that he wouldn't be a sympathetic enough figure. "Ooooo, he's rich... let him get a bodyguard..." Which ignores how said bodyguard is supposed to get licensed for a weapon himself (or is the guy just supposed to be a human bullet shield?).

I see Kopel's point, but this is not a good case to use for a variety of reasons.

Hoosier they are not worried about when they are in the club but when they are walking to their car. Several NBA players were jacked after leaving clubs and lost thousands of dollars in cash and jewelry.

Steve Smith was driven home to his gated community where he was followed and robbed at gun point. That happened last week. There are often criminals hanging out with the athletes and entertainers in the clubs. No different then when Frankie Carbo and Frank Costello sent over champagne to Mickey Mantle and Whitey Ford at the Copa in the fifties. The difference now is that these guys are big time targets for home invasions and stick ups.

Is it stupid for them to go to a club? I guess so but I think they have a right to go out if they want too even if it is not something I would want to do.

By the way almost all gun possession felonies by a first time offender with a stable job and family life are plead down to a misdemeanor. To do otherwise in this case would be an extreme miscarriage of justice. Of course it would make all the nerdy pussies who hate athletes feel good about themselves. So there's that.

http://www.iht.com/articles/ap/2008/12/03/sports/FBN-Burress-Gun-Possession.phpAsked about plea deals involving gun possession cases, [District Attorney] Morgenthau's chief deputy, Daniel Castleman, said: "Every case is evaluated on its own merits," adding, "we do believe jail time is appropriate for some people who carry guns."

He also said "there have been some instances" where his office did not believe a person guilty of illegal gun possession needed to go to jail.

One instance was the case of rapper Busta Rhymes, who pleaded guilty in 1999 to possessing a loaded .45-caliber gun and got no jail and five years of probation.

Rhymes dodged jail apparently by convincing a Manhattan judge that he kept the gun in his Mercedes because an armed robbery made him fear for his life.

Burress has not spoken publicly about what possessed him to pack a gun, but some have speculated that he was carrying it for safety reasons after teammate and fellow wide receiver Steve Smith was robbed at gunpoint three days earlier after being driven to his town house in a chauffeur-driven car.

HoosierDaddy said: On a different point, I do wonder why some of these guys feel it necessary to be packing in nightclubs anyway? I mean what kind of places are they going to that warrants carrying a weapon?

That comes up a lot, and personally I find it to be a very weak argument. You're young, have money, and live/work in a cultural mecca full of beautiful women... yeah, you're hanging out at the library or some quilting bee. The nightclub where the incident happened was in Midtown, a few blocks from Times Square and Radio City Music Hall, it doesn't get a whole lot safer in the City. Just because someone has a different risk threshold doesn't mean they surrender their right to be secure in their person. Burress's mistake here wasn't carrying a gun, it was a poor choice of carry method, not having proper weapon retention (which was inherent to the style of carry), and combining both with alcohol. If Plaxico lives in PA where guns are legal for visitors to carry, there are any number of shops where he could stop in and have a trained professional recommend/provide a suitable carry rig, incident probably doesn't happen. In NYC, since there's no possibility of his legally carrying a firearm, and the only suppliers cater mainly to law enforcement, the act of obtaining a proper rig is tantamount to admitting that he's breaking the law. The state (through severe disincentives) made it extremely less likely that he would obtain/avail himself of the proper gear and/or training.

I wasn't aware that these guys are that big of targets. That being the case I would definitely want to be armed as well. Like I said, I'm not the least bit squeamish about packing mine when I lean toward the edge of caution.

Troop, I'm not down on Plaxico for carrying a gun but rather the irresponsible and dangerous way he did so and that squanders a lot of pro-gun sympathy he should be getting.

There is a disconnect between the law as written in the law statutes and how the real world works. I am sure most of you have never been in an after hours where many people are carrying legally or otherwise. Some are law enforcement, others are law breakers. There probably were about twenty guns in that club that night. There are twenty illegal guns in the club every night. Plaxico is just a clumsy fool but he is far from a criminal.After all the hoopla dies down he will get probation and a suspended sentence just like almost anyone else in his situation would get.

Of the course the self-righteous moralizing journalists and lawyers will pee their panties but they will get over it.

Jayson Williams of the Nets shot and killed his limo driver five years ago and never did a day in jail.

Not being a gun owner myself, I recognize this might be a dump question, but: Why didn't Burress carry his gun in a holster?

Sans-a-belt pants don't seem strong enough to hold a gun, especially when you're in a nightclub and figure to be dancing. But then I also don't go to too many nightclubs nowadays. Maybe everyone just stands around looking cool. Still, isn't the point of sweatpants to stretch to make room for all your junk?

NY's gun law does seem to be, on its face, unconstitutional. The gun rights people ought to find a defendant who is less of a doofus than Burress and get it overturned.

There are tons of places in the country where in order to carry a concealed firearm you need a CC permit and where the people in charge of deciding who gets a permit never, ever, give them out. Someone who applies for a permit and is denied (or simply placed in administrative limbo) seems a better choice than Plaxico Burress to attack such violations of 2nd amendment rights.

"Which ignores how said bodyguard is supposed to get licensed for a weapon himself (or is the guy just supposed to be a human bullet shield?)."

No, it's all part of the government-approved-guns-are-ok conceit.

Hoosier,

I think you're wrong in your approach to carry. As a wiser person than I once said, "I don't carry a handgun so I can go to dangerous places; if I knew something bad was going to happen I simply wouldn't go there. Rather, I carry because I cannot know when trouble may reach out and find me."

I think you're wrong in your approach to carry. As a wiser person than I once said, "I don't carry a handgun so I can go to dangerous places; if I knew something bad was going to happen I simply wouldn't go there.

Well sometimes one doesn't have a choice as to whether they must venture to dangerous places. For example I don't hang out at the titty bar at 1am because nothing good happens at 1am. On the other hand sometimes I have to be downtown late and my travels home don't always go through the bestest parts of town.

My 90+-yo cousin was given a small blue revolver by her uncle and instructed to keep it in her glove box for her trips through the bad parts of South Carolina (back before the Uncle's ashes were turned into a bridge in Columbia, that is, the mid-1940s). So this makes me wonder when concealed carry permits started to be required. Was she breaking the law all those years ago? Or does putting it in your glove box not count?

MadisonMan:According to the old guy at my gun club, in the late 40's - early 50's, if you had the means you could, at any decent department store, go to sporting goods and buy a brace of rifles for safari and a Smith and Wesson revolver, and assuming you weren't visibly deranged, have the rifles sleeved and packed for travel while carrying the S&W out in your pocket. Show up at the plane, throw your rifles on the overhead rack, and take a seat, with your revolver still in your pocket, unmentioned to anyone. Colt and SW ads from the era talk about guns as a normal piece of gear for the adventurous traveler - to Europe. Actually the Thompson machine gun ads (true machine guns, not the cosmetically scary boogie man assault rifle) are bizarre to the modern audience (http://www.flickr.com/photos/kingpowercinema/35177769/). That pretty much stopped with the terrorism/hijacking wave of the 60's and 70's.

"Well sometimes one doesn't have a choice as to whether they must venture to dangerous places"

Alas, just as in my day job of software development, you can't find the flaws in your design until you let other people have at it.

What I really meant to emphasize in my prior response to you wan't the dangerous-place part (though I'm willing to bet you didn't have to actually use your handgun very often while passing through Gary.) Rather, it's the "I'm not going somewhere 'dangerous' so I don't need to carry" aspect that I think is misleading and dangerous.

On a different point, I do wonder why some of these guys feel it necessary to be packing in nightclubs anyway?

If I were famous and famously rich, I would be packing everywhere. If everyone knows you have a lot of money, you're basically a walking target wherever you go.

And yes, New York's gun laws are so onerous that I think this case should be used to challenge them. If you want to charge him with unlawfully discharging a weapon, fine. But just possessing one? What a crock. Americans have constitutional rights. It's time for New York to respect them.

Next thing you know you'll need a permit to practice your religion (or not practice a religion), a permit to exercise free speech (pretty much already there), forget about permits for Amendment IV because that's practically out the window as is, same with many that follow, Amendment X is now an utter joke, ...

isn't the point of sweatpants to stretch to make room for all your junk?Apparently he had too much stretch or not enough junk to hold the gun securely. If he'd actually grazed some junk, he could make a strong case for already being a good example to the public, so no further punishment is necessary.

What I really meant to emphasize in my prior response to you wan't the dangerous-place part (though I'm willing to bet you didn't have to actually use your handgun very often while passing through Gary.)

You're right. Not once in five years but it made me feel warm and fuzzy inside.

Rather, it's the "I'm not going somewhere 'dangerous' so I don't need to carry" aspect that I think is misleading and dangerous.

Well I see what you're saying but I just don't feel the need to be packing on a daily basis. I don't carry my gun to church or generally to work unless I know I'll be working late. Yeah its a crapshoot.

That's the beauty of titty bars, you don't need to whip out your gun. Better yet, ask Mrs Hoosier to go along with you. You might be surprised.

Garage, if Mrs. Hoosier went with me too a titty bar I 'm pretty confident that the rivers and moon would turn to blood, plagues of frogs and locusts, fire, brimstone and a pale rider on a pale horse who goes by the name of Mrs. Hoosier.

(Oh, but don't take that to mean that I think stripping is some kind of transcendent art form that elevates women. I think of strip clubs as being about on the same level as girlie mags, titillation material that some people like, and that generally denegrates all participants. those producing and those consuming.

But hey, I don't think anyone was really looking for my personal take on these establishments...)

I was in a non-titty bar late at night. Two guys at the bar got in a fight. One of them was very large. He grabbed the other guy, who was a welterweight, by the shirt. He slapped him two or three times very hard across the face. He told the smaller man to get the fuck out of his face and then pushed him away. The smaller man ran out of the bar. He was a correction officer. He went out to his car and came back with a registered, authorized weapon. He came back and shot the larger man five times. He did not shoot any bystanders. We were all grateful for the marksmanship training he had received......I have always had difficulty finding the moral underlying life's many traumas. I suppose the moral to this tale is that liquor and guns are a bad combo. Another moral might be don't slap around a total stranger. I guess the key moral to gather from the tale is don't hang around bars late at night when everyone is drunk and stupid. This is particularly true if you, yourself, are fairly stupid.

So I take it you are not interested in being in my "The Woman of Althouse Calendar" with tastefully photographed nude photos based on the paintings of the old masters.

I figure you; Darcy, Dust Bunny Queen, Ruth Anne, Victoria, Beth, Reader_Iam and Freder would make a great calendar. All proceeds would go to Toys for Tarts which helps the children of topless dancers get toys during the holiday season.

Freeman Hunt said... LOL, Trooper. Now Freder's going to hold a grudge against you. Wait, what am I talking about? He'll never see this. Like he'd be interested in a thread about the importance of gun rights.

Freder would be if it was a thread about gun rights for "innocent until proven guilty in a court of law" terrorists. (See, their ACLU lawyer might say they were only caught with guns and high explosives because of their fear of Islamophobia and threats directed at their mosque. And their arrest was a violation of the 4th and illegal wiretapping of their phone calls to Pakistan..)